Excerpt: - .....in this suit. the defendant has shown a subsisting right as against the plaintiffs and as in this suit the plaintiffs seek to enforce an equitable right, the defendant is also entitled be enforce his equitable claim by way of set-off in this suit..6. the learned judges of the lower appellate court and also of the court of first instance do not appear to have been referred to any authority upon this particular matter. apart from the principle to which i have referred there are certain oases which have been laid before us which serve as illustrations of that principle. these are the cases of gajadhar mahto v. raghubar gope [1907] 12 c.w.n. 60 and ramdhari singh v. permanund singh [1914-15] 19 c.w.n. 1183.7. for these reasons 1 think the judgment of the lower appellate court was wrong and.....

Judgment:

Pearson, J.

1. This is an appeal from a decision of the Subordinate Judge of Tipperah, varying a judgment and decree of the 2nd Munsif of Nabinagar, dated the 2nd September 1921. It appears that the plaintiffs and the defendant were coil tenants of a holding Rent having fallen into arrears the landlord brought a suit against them for rent for part of the year 1392 and for the years 1323 and 1324 and obtained a decree. The plaintiffs made the necessary payment to save the holding from being brought to sale, and in this suit they claimed against the defendant for contribution in respect of the amount so paid.

2. Before us it is not contended that the defendant is not liable to this contribution, but it is argued that for certain other payments made by the defendant to the land- lord in respect of the rent for the previous years that defendant is entitled to get credit by way of set-off in this suit of the amount which he would have been entitled to claim from the plaintiffs by way of contribution in respect of these payments made to the landlord by the defendant himself.

3. Upon this point both the Courts below have found against the defendant and that is the sole point, which is now argued before us in this second appeal.

4. It has been argued on the part of the plaintiffs that no credit of this kind can be given to the defendant in this suit because admittedly the defendant's claim for contribution in regard to these payments would now be barred if ho brought a suit in the capacity of a plaintiff. It seems to me that both upon principle and authority this position is one which can-not he maintained.

5. The plaintiffs in this suit come into Court seeking contribution from the defendant, that is to say, they are seeking to enforce against the defendant an equitable right, which they have. That being so it is open to the Court sitting as a Court of equity to give effect to the equitable claim which the defendant in turn may be able to show that he has still subsisting against the plaintiff in this suit. The defendant has shown a subsisting right as against the plaintiffs and as in this suit the plaintiffs seek to enforce an equitable right, the defendant is also entitled be enforce his equitable claim by way of set-off in this suit..

6. The learned Judges of the lower appellate Court and also of the Court of first instance do not appear to have been referred to any authority upon this particular matter. Apart from the principle to which I have referred there are certain oases which have been laid before us which serve as illustrations of that principle. These are the cases of Gajadhar Mahto v. Raghubar Gope [1907] 12 C.W.N. 60 and Ramdhari Singh v. Permanund Singh [1914-15] 19 C.W.N. 1183.

7. For these reasons 1 think the judgment of the lower appellate Court was wrong and that the defendant must be allowed to have credit in this suit for such sums as he may be able to show he would be entitled to claim from the plaintiffs by way of contribution in respect of payment made by him on account of rents of the previous years although any suit for contribution upon that footing might now be barred by limitation. The case must be Sent back to the lower appellate Court for disposal after ascertaining what the actual amount is to which the defendant is entitled to credit upon the footing above mentioned.

8. The appellant is entitled to the costs of this appeal. No order as to costs of the lower Courts.